Rupa Marya v. Warner Chappell Music Inc

Filing 259

DECLARATION of Betsy C. Manifold in Support of NOTICE OF MOTION AND MOTION to AMEND Amended Complaint, 95 Notice of Motion and Motion for Leave to Amend and File Fifth Amended Complaint 258 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Manifold, Betsy)

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EXHIBIT B Exhibit B Page 54 1 2 3 4 5 6 7 BETSY C. MANIFOLD (182450) manifold@whafh.com WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 Interim Lead Class Counsel for Plaintiffs [Additional Counsel on Signature Page] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 10 11 12 13 14 15 GOOD MORNING TO YOU PRODUCTIONS CORP.; ROBERT SIEGEL; RUPA MARYA; and MAJAR PRODUCTIONS, LLC, On Behalf of Themselves and All Others Similarly Situated, 16 Plaintiffs, 17 18 19 20 v. WARNER/CHAPPELL MUSIC, INC.; and SUMMY-BIRCHARD, INC., 21 22 23 24 25 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Lead Case No. CV 13-04460-GHK (MRWx) FIFOURTH AMENDED CONSOLIDATED COMPLAINT FOR: (1) DECLARATORY JUDGMENT (28 U.S.C. § 2201); (2) DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES (28 U.S.C. § 2202); (3) VIOLATIONS OF CALIFORNIA’S UNFAIR COMPETITION LAWS (Bus. & Prof. Code §§ 17200 et seq.); (4) BREACH OF CONTRACT; (5) COMMON LAW MONEY HAD AND RECEIVED; (6) RESCISSION FOR FAILURE OF CONSIDERATION; and (7) VIOLATIONS OF CALIFORNIA’S FALSE ADVERTISING LAWS (Bus. & Prof. Code §§ 17500 et seq.) CLASS ACTION DEMAND FOR JURY TRIAL 26 27 28 Exhibit B Page 55 1 Plaintiffs, Good Morning to You Productions Corp. (“GMTY”), Robert 2 Siegel (“Siegel”), Rupa Marya d/b/a/ Rupa Marya & The April Fishes (“Rupa”), and 3 Majar Productions, LLC (“Majar”) (collectively herein “Plaintiffs”), on behalf of 4 themselves and all others similarly situated, by their undersigned attorneys, as and 5 for their Fourth Amended Consolidated Complaint For: (1) Declaratory Judgment 6 (28 U.S.C. § 2201); (2) Declaratory and Injunctive Relief and Damages (28 U.S.C. § 7 2202); (3) Violations of California’s Unfair Competition Laws (Bus. & Prof. Code 8 §§ 17200 et seq.); (4) Breach of Contract; (5) Common Law Money Had and 9 Received; (6) Rescission for Failure of Consideration; and (7) Violations of 10 California’s False Advertising Laws (Bus. & Prof. Code §§ 17500 et seq.) against 11 defendants Warner/Chappell Music, Inc. (“Warner/Chappell”) and Summy- 12 Birchard, Inc. (“SBI”) (collectively “Defendants”), hereby allege as follows: 13 14 JURISDICTION AND VENUE 1. The Court has subject-matter jurisdiction over this action pursuant to 15 28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory 16 and other relief arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant 17 to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; pursuant to the Class 18 Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental jurisdiction pursuant 19 to 28 U.S.C. § 1367 over the entire case or controversy. 20 2. The Court has personal jurisdiction and venue is proper in this District 21 under 28 U.S.C. §§ 1391(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in 22 this Judicial District where both Defendants’ principal places of business are located 23 and where they regularly conduct business. 24 3. Paragraph 8 of the Film and Synchronization and Performance License 25 (“Synchronization License”) by and between assignee plaintiff Siegel and defendant 26 Warner/Chappell states: “this license has been entered into in, and shall be 27 interpreted in accordance with the laws of the state of California, and any action or 28 -1- Exhibit B Page 56 1 proceeding concerning the interpretation and/or enforcement of this license shall be 2 heard only in the state or federal courts situated in Los Angeles county. . . .” 3 Defendant Warner/Chappell requires any action or proceeding related thereto to be 4 brought in this District under the Synchronization License. 5 6 INTRODUCTION 4. This is an action to declare that Defendants do not own a copyright to 7 the world’s most popular song, Happy Birthday to You (the “Song”), that if 8 Defendants own any copyright to the Song, it is limited to four specific piano 9 arrangements or an obscure second verse that has no commercial value, that any 10 other copyright to the Song that Defendants may own or ever owned are invalid or 11 have expired, and that the Song is dedicated to public use and in the public domain; 12 and in turn to declare that Defendants must return millions of dollars of unlawful 13 licensing fees collected by defendant Warner/Chappell pursuant to its wrongful 14 assertion of copyright ownership of the Song. 15 5. According to the United States Copyright Office (“Copyright Office”), 16 a “musical composition consists of music, including any accompanying words, and 17 is normally registered as a work of the performing arts.” Copyright Office Circular 18 56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1 19 (Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a 20 musical composition generally is the composer, and the lyricist (if a different 21 person). Id. 22 6. More than 120 years after the melody to which the simple lyrics of 23 Happy Birthday to You is set was first published, defendant Warner/Chappell 24 boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy 25 Birthday to You, and with that copyright the exclusive right to authorize the Song’s 26 reproduction, distribution, and public performances pursuant to federal copyright 27 law. At all relevant times, Warner/Chappell declared in the first two sentences on 28 the “About Us” page of its website that “Warner/Chappell Music is [Warner Music -2- Exhibit B Page 57 1 Group]’s award-winning global music publishing company. The Warner/Chappell 2 Music catalog includes standards such as ‘Happy Birthday To You’. . .” (available 3 at www.warnerchappell.com/about.jsp?currenttab=about_us as of June 18, 2013). 4 Defendant Warner/Chappell either has silenced those wishing to record or perform 5 Happy Birthday to You, or has extracted millions of dollars in unlawful licensing 6 fees from those unwilling or unable to challenge its ownership claims. 7 7. Irrefutable documentary evidence, some dating back to 1893, shows 8 that if defendant Warner/Chappell owned or owns any copyrights to Happy Birthday 9 to You, those rights were and are limited to the extremely narrow right to reproduce 10 and distribute specific piano arrangements for the Song, or an obscure second verse 11 that has no commercial value, which were published in 1935. That same evidence 12 also shows that if Warner/Chappell ever owned a copyright to any other part of the 13 Song, it was invalid or expired no later than 1921. Significantly, no court has ever 14 adjudicated either the scope or validity of the Defendants’ claimed interest in Happy 15 Birthday to You, nor in the Song’s melody or its familiar lyrics, which are, 16 themselves, independent works. 17 8. Various legal scholars and copyright and music industry experts agree 18 with the foregoing, questioning the validity of Defendants’ assertion of copyright in 19 the Song, and supporting the conclusion that Happy Birthday properly exists in the 20 public domain. For example, Professor Robert Brauneis, Professor of Law and Co- 21 Director of the Intellectual Property Law Program at George Washington 22 University, and a leading legal scholar in intellectual property law, has stated that it 23 is “doubtful” that Happy Birthday “is really still under copyright.” 24 9. Plaintiffs GMTY, Siegel, Rupa, and Majar, on behalf of themselves and 25 all others similarly situated, seek a declaration that Happy Birthday to You is 26 dedicated to public use and is in the public domain as well as monetary damages and 27 restitution of all the unlawful licensing fees that defendants have improperly 28 collected from Plaintiffs and all other Class members. -3- Exhibit B Page 58 1 2 PLAINTIFFS 10. Plaintiff GMTY is a New York corporation with its principal place of 3 business located in New York County. Under a claim of copyright by defendant 4 Warner/Chappell, on or about March 26, 2013, GMTY paid defendant 5 Warner/Chappell the sum of $1,500 for a synchronization license to use Happy 6 Birthday to You and on or about April 24, 2013, GMTY entered into a 7 synchronization license with Warner/Chappell, as alleged more fully herein. 8 11. Plaintiff Robert Siegel is the assignee of BIG FAN PRODUCTIONS, 9 INC. (“BIG FAN”), an inactive New York corporation and a resident of New York, 10 New York. Under a claim of copyright by defendant Warner/Chappell, on or about 11 September 1, 2009, BIG FAN paid to defendant Warner/Chappell the sum of $3,000 12 for the Synchronization Licenses to use Happy Birthday to You, as alleged more 13 fully herein. Plaintiff Siegel, the then-President of BIG FAN, was assigned BIG 14 FAN’s rights and claims, including those pertaining to the Synchronization License 15 pursuant to Paragraph 7 thereof between defendant Warner/Chappell and BIG FAN, 16 entered into on or about July 20, 2009. 17 12. Plaintiff Rupa is a musician and leader of the band entitled “Rupa & 18 The April Fishes” (“RTAF”), and a member of the American Society of Composers, 19 Authors and Publishers (“ASCAP”). Plaintiff Rupa is a resident of San Mateo 20 Alameda County, California. RTAF recorded Happy Birthday to You at a live show 21 in San Francisco, California, on April 27, 2013. Under a claim of copyright by 22 defendant Warner/Chappell, on or about June 17, 2013, plaintiff Rupa d/b/a RTAF 23 paid to defendant Warner/Chappell the sum of $455 for a compulsory license 24 pursuant to 17 U.S.C. § 115 (commonly known as a “mechanical license”) to use 25 Happy Birthday to You, as alleged more fully herein. 26 13. Plaintiff Majar is a Los Angeles-based film production company that 27 produced the award winning documentary film “No Subtitles Necessary: László & 28 Vilmos” (hereafter, “No Subtitles Necessary” or the “Film”). The Film follows the -4- Exhibit B Page 59 1 lives of renowned cinematographers László Kovacs (“Kovacs”) and Vilmos 2 Zsigmond (“Zsigmond”) from escaping the 1956 Soviet invasion of Hungary to the 3 present day. As film students in Hungary, Kovacs and Zsigmond shot footage of the 4 Russian invasion of Budapest and subsequently risked their lives to smuggle it out 5 of the country. They fled to America and settled in Hollywood, eventually saving 6 enough money to buy their own 16mm camera to begin shooting movies. Both rose 7 to prominence in the late 1960’s and 1970’s having shot films such as “Easy Rider,” 8 “Five Easy Pieces,” “McCabe and Mrs. Miller,” “Deliverance,” “Paper Moon,” and 9 “Close Encounters of the Third Kind.” No Subtitles Necessary tells the story of 10 their lives and careers. 11 12 DEFENDANTS 14. Defendant Warner/Chappell is a Delaware corporation with its 13 principal place of business located at 10585 Santa Monica Boulevard, Los Angeles, 14 California 90025 and regularly conducts business within this Judicial District. 15 15. Defendant SBI is a Wyoming corporation with its principal place of 16 business located at 10585 Santa Monica Boulevard, Los Angeles, California 90025. 17 SBI regularly conducts business within this Judicial District, where it may be found. 18 On information and belief, SBI is a subsidiary of Warner/Chappell, having been 19 acquired by Warner/Chappell in or around 1998. 20 21 22 FACTUAL BACKGROUND Good Morning to All and the Popular Adoption of Happy Birthday to You 16. Sometime prior to 1893, Mildred J. Hill (“Mildred Hill”) and her sister 23 Patty Smith Hill (“Patty Hill”) (Mildred and Patty Hill are collectively referred to as 24 the “Hill Sisters”) authored a written manuscript containing sheet music for 73 25 songs composed or arranged by Mildred Hill, with words written and adapted by 26 Patty Hill. 27 17. 28 The manuscript included Good Morning to All, a song written by the Hill Sisters. -5- Exhibit B Page 60 1 18. On or about February 1, 1893, the Hill Sisters sold and assigned all 2 their right, title, and interest in the written manuscript to Clayton F. Summy 3 (“Summy”) in exchange for 10 percent of retail sales of the manuscript. The sale 4 included the song Good Morning to All. 5 19. In or around 1893, Summy published the Hill Sisters’ written 6 manuscript with an introduction by Anna E. Bryan (“Bryan”) in a songbook titled 7 Song Stories for the Kindergarten. Song Stories for the Kindergarten included the 8 song Good Morning to All. 9 10 11 12 13 14 15 20. On or about October 16, 1893, Summy filed a copyright application (Reg. No. 45997) with the Copyright Office for Song Stories for the Kindergarten. 21. On the October 16, 1893, copyright application, Summy claimed to be the copyright’s proprietor, but not the author of the copyrighted works. 22. Song Stories for the Kindergarten bears a copyright notice reading “Copyright 1893, by Clayton F. Summy.” 23. As proprietor of the 1893 copyright in Song Stories for the 16 Kindergarten, Summy asserted copyright ownership in the compilation of songs, as 17 well as, the individual songs published therein, including Good Morning to All. 18 24. The lyrics to Good Morning to All are: 19 Good morning to you 20 Good morning to you 21 Good morning dear children 22 Good morning to all. 23 25. The lyrics to Happy Birthday to You are set to the melody from the 24 song Good Morning to All. As nearly everyone knows, the lyrics to Happy Birthday 25 to You are: 26 Happy Birthday to You 27 Happy Birthday to You 28 Happy Birthday dear [NAME] -6- Exhibit B Page 61 1 Happy Birthday to You. 2 3 26. The lyrics to Happy Birthday to You were not published in Song Stories for the Kindergarten. 4 27. On or about January 14, 1895, Summy incorporated the Clayton F. 5 Summy Company (“Summy Co.”) under the laws of the State of Illinois for a 6 limited term of 25 years. On that same date, Summy purported to assign all his 7 right, title, and interest in Song Stories for the Kindergarten to Summy Co. 8 28. In 1896, Summy published a new, revised, illustrated, and enlarged 9 version of Song Stories for the Kindergarten, which contained eight previously 10 unpublished songs written by the Hill Sisters as well as illustrations by Margaret 11 Byers. 12 29. On or about June 18, 1896, Summy filed a copyright application (Reg. 13 No. 34260) with the Copyright Office for the 1896 publication of Song Stories for 14 the Kindergarten. 15 16 17 18 19 30. On its June 18, 1896, copyright application, Summy again claimed to be the copyright’s proprietor, but (again) not the author of the copyrighted works. 31. The 1896 version of Song Stories for the Kindergarten bears a copyright notice reading “Copyright 1896, by Clayton F. Summy.” 32. As proprietor of the 1896 copyright in the revised Song Stories for the 20 Kindergarten, Summy owned the rights to both the songbook as a compilation and 21 the individual songs published therein, including Good Morning to All. 22 23 24 33. The lyrics to Happy Birthday to You were not published in the 1896 version of Song Stories for the Kindergarten. 34. In 1899, Summy Co. published 17 songs from the 1893 version of Song 25 Stories for the Kindergarten in a songbook titled Song Stories for the Sunday 26 School. One of those songs included in Song Stories for the Sunday School was 27 Good Morning to All. And yet again, neither the song Happy Birthday nor the lyrics 28 to Happy Birthday were published in “Song Stories for the Sunday School.” -7- Exhibit B Page 62 1 2 3 4 35. On or about March 20, 1899, Summy Co. filed a copyright application (Reg. No. 20441) with the Copyright Office for Song Stories for the Sunday School. 36. On the 1899 copyright application, Summy Co. claimed to be the copyright’s proprietor, but not the author of the copyrighted works. 5 37. 6 This collection of songs has been published in response to earnest requests 7 from various sources. They are taken from the book, Song Stories for the 8 Kindergarten by the MISSES HILL, and are the copyright property of the 9 publishers. (Emphasis added). 10 11 12 38. The title page to Song Stories for the Sunday School states: Song Stories for the Sunday School bears a copyright notice reading “Copyright 1899 by Clayton F. Summy Co.” 39. As proprietor of the 1899 copyright in Song Stories for the Sunday 13 School, Summy Co. owned the rights to both the songbook as a compilation and the 14 individual songs published therein, including Good Morning to All. 15 16 17 40. The lyrics to Happy Birthday to You were not published in Song Stories for the Sunday School. 41. Even though the lyrics to Happy Birthday to You and the song Happy 18 Birthday to You had not been fixed in a tangible medium of expression, the public 19 began singing Happy Birthday to You no later than the early 1900s. 20 42. For example, in the January 1901 edition of Inland Educator and 21 Indiana School Journal, the article entitled “First Grade Opening Exercises” 22 described children singing the words “happy birthday to you,” but did not print the 23 Song’s lyrics or melody. 24 25 26 27 28 43. In or about February, 1907, Summy Co. republished the song Good Morning to All as an individual musical composition. 44. On or about February 7, 1907, Summy Co. filed a copyright application (Reg. No. 142468) with the Copyright Office for the song Good Morning to All. 45. The lyrics to Happy Birthday to You do not appear in the 1907 -8- Exhibit B Page 63 1 publication of Good Morning to All. 2 3 46. In 1907, Fleming H. Revell Co. (“Revell”) published the book Tell Me a True Story, arranged by Mary Stewart, which instructed readers to: 4 Sing: “Good-bye to you, good-bye to you, good-bye dear children, good- 5 bye to you.” Also: “Good-bye dear teacher.” (From “Song Stories for the 6 Sunday-School,” published by Summy & Co.) 7 Sing: “Happy Birthday to You.” (Music same as “Good-bye to You.”) 8 9 47. A239690) with the Copyright Office for Tell Me a True Story. 10 11 On or about May 18, 1909, Revell filed an application (Reg. No. 48. Tell Me a True Story did not include the lyrics to Happy Birthday to 49. Upon information and belief, the lyrics to Happy Birthday to You You. 12 13 (without the sheet music for the melody) were first published in 1911 by the Board 14 of Sunday Schools of the Methodist Episcopal Church (“Board of Sunday Schools”) 15 in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester 16 Lincoln, as follows: 17 Happy birthday to you, Happy birthday to you, Happy birthday, dear John, 18 Happy birthday to you. (Sung to the same tune as the “Good Morning”) 19 [NOTE: The songs and exercises referred to in this program may be found in 20 these books:... “Song Stories for the Sunday School,” by Patty Hill.] 21 50. On or about January 6, 1912, the Board of Sunday Schools filed a 22 copyright application (Reg. No. A303752) with the Copyright Office for The 23 Elementary Worker and His Work. 51. 24 The Elementary Worker and His Work attributed authorship or 25 identified the copyrights to many of the works included in the book. Significantly, it 26 did not attribute authorship or identify any copyright for the song Happy Birthday to 27 You. 28 52. On or about January 14, 1920, Summy Co. was dissolved in accordance -9- Exhibit B Page 64 1 with its limited (not perpetual) 25-year term of incorporation. Summy Co. did not 2 extend or renew the 1893 (Reg. No. 45997) or 1907 (Reg. No. 142468) copyrights 3 prior to its dissolution. 4 53. Upon information and belief, by 1912, various companies (such as 5 Cable Company Chicago) had begun producing unauthorized printings of sheet 6 music which included the song known today as Happy Birthday (i.e., the melody of 7 Good Morning to You with the lyrics changed to those of Happy Birthday). On 8 information and belief, Cable Company Chicago never asserted copyright ownership 9 in Happy Birthday. 10 54. On information and belief, in or before 1922, pursuant to authority granted to 11 it by Patty or Jessica Hill, Summy Co. authorized The Cable Company 12 (Chicago) (“Cable Co.”) to publish the music and lyrics to Happy Birthday to 13 You. In 1922, pursuant to that authority, Cable Co. published the revised 14 fourth edition of The Everyday Song Book with the music and lyrics to 15 Happy Birthday to You, including the following note: “Special permission 16 through courtesy of The Clayton F. Summy Co.” The Cable Company 17 registered a copyright for the fourth edition of The Everyday Song Book in 18 1921, which it did not renew. The publication of The Everyday Song Book in 19 1922 was without a copyright notice. 20 53.55. 21 Copyright History of Good Morning to All 22 54.56. Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights 23 to the original Song Stories for the Kindergarten, Song Stories for the Sunday 24 School, and Good Morning to All were vested solely in their proprietor, Summy Co. 25 55.57. Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights 26 to the revised Song Stories for the Kindergarten were vested solely in their 27 proprietor, Summy Co. 28 56.58. The copyright to the original Song Stories for the Kindergarten (Reg. - 10 - Exhibit B Page 65 1 No. 45997) was not extended by Summy Co., and consequently expired on October 2 16, 1921. The original Song Stories for the Kindergarten, including the song Good 3 Morning to All, became dedicated to public use and fell into the public domain by 4 no later than that date. 5 57.59. The copyright to the revised Song Stories for the Kindergarten (Reg. 6 No. 34260) was not extended by Summy, and consequently expired on June 18, 7 1924. The revised Song Stories for the Kindergarten became dedicated to public 8 use and fell into the public domain by no later than that date. 9 58.60. In or around March 1924, the sheet music (with accompanying lyrics) 10 to Happy Birthday to You was in a songbook titled Harvest Hymns, published, 11 compiled, and edited by Robert H. Coleman (“Coleman”). Upon information and 12 belief, Harvest Hymns was the first time the melody and lyrics of Happy Birthday to 13 You were published together. 14 59.61. Coleman did not claim authorship of the song entitled Good Morning 15 to You or the lyrics to Happy Birthday to You. Although Harvest Hymns attributed 16 authorship or identified the copyrights to many of the works included in the book, it 17 did not attribute authorship or identify any copyright for Good Morning to You or 18 Happy Birthday to You. 19 60.62. On or about March 4, 1924, Coleman filed a copyright application 20 (Reg. No. A777586) with the Copyright Office for Harvest Hymns. On or about 21 February 11, 1952, the copyright was renewed (Reg. No. R90447) by the Sunday 22 School Board of the Southern Baptist Convention. 23 61.63. On or about April 15, 1925, Summy incorporated a new Clayton F. 24 Summy Co. (“Summy Co. II”) under the laws of the State of Illinois. Upon 25 information and belief, Summy Co. II was not a successor to Summy Co.; rather, it 26 was incorporated as a new corporation. 27 62.64. The sheet music (with accompanying lyrics) to Happy Birthday to You 28 was again published in 1928 in the compilation Children’s Praise and Worship, - 11 - Exhibit B Page 66 1 compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin (“Byers, 2 Byrum & Koglin”). Upon information and belief, Children’s Praise and Worship 3 was the first time the song was published under the title Happy Birthday to You. 4 63.65. On or about April 7, 1928, Gospel Trumpet Co. (“Gospel”) filed a 5 copyright application (Reg. No. A1068883) with the Copyright Office for 6 Children’s Praise and Worship. 7 64.66. Children’s Praise and Worship attributed authorship or identified the 8 copyrights to many of the works included in the book. Significantly, it did not 9 attribute authorship or identify any copyright for the song Happy Birthday to You. 10 65.67. Children’s Praise and Worship did not provide any copyright notice for 11 the combination of Good Morning to All with the lyrics to Happy Birthday to You, 12 nor did it include the names of Mildred Hill or Patty Hill and did not attribute any 13 authorship or ownership to the Hill Sisters. 14 66.68. Upon information and belief, the Hill Sisters had not fixed the lyrics to 15 Happy Birthday to You or the song Happy Birthday to You in a tangible medium of 16 expression, if ever, at any time before Gospel published Children’s Praise and 17 Worship in 1928. 18 19 67.69. Upon information and belief, Summy sold Summy Co. II to John F. Sengstack (“Sengstack”) in or around 1930. 20 68.70. Upon information and belief, on or about August 31, 1931, Sengstack 21 incorporated a third Clayton F. Summy Co. (“Summy Co. III”) under the laws of the 22 State of Delaware. 23 successor to Summy Co. or Summy Co. II; rather, it was incorporated as a new 24 corporation. Upon information and belief, Summy Co. III was not a 25 69.71. On May 17, 1933, Summy Co. II was dissolved for failure to pay taxes. 26 70.72. On July 28, 1933, Happy Birthday to You was used in the world’s first 27 28 singing telegram. 71.73. On September 30, 1933, the Broadway show As Thousands Cheer, - 12 - Exhibit B Page 67 1 produced by Sam Harris with music and lyrics written by Irving Berlin, began using 2 the song Happy Birthday to You in public performances. 3 72.74. On August 14, 1934, Jessica Hill, a sister of Mildred Hill and Patty 4 Hill, commenced an action against Sam Harris in the Southern District of New 5 York, captioned Hill v. Harris, Eq. No. 78-350, claiming that the performance of 6 Happy to Birthday to You in As Thousands Cheer infringed on the Hill Sisters’ 1893 7 and 1896 copyrights to Good Morning to All. Jessica Hill asserted no claim in that 8 action regarding Happy Birthday to You, alone or in combination with Good 9 Morning to All. 10 73.75. On January 21, 1935, Jessica Hill commenced an action against the 11 Federal Broadcasting Corp. in the Southern District of New York, captioned Hill v. 12 Federal Broadcasting Corp., Eq. No. 79-312, claiming infringement on the Hill 13 Sisters’ 1893 and 1896 copyrights to Good Morning to All. Jessica Hill asserted no 14 claim in that action regarding Happy Birthday to You, alone or in combination with 15 Good Morning to All. 16 74.76. In 1934 and 1935, Jessica Hill sold and assigned to Summy Co. III 17 certain piano arrangements of Good Morning to All, including publishing, public 18 performance, and mechanical reproduction rights, copyright, and extension of 19 copyright in exchange for a percentage of the retail sales revenue from the sheet 20 music. 21 Applications for Copyright for New Musical Arrangement 22 75.77. On or about December 29, 1934, Summy Co. III filed an Application 23 for Copyright for Republished Musical Composition with new Copyright Matter 24 (Reg. No. E45655) with the Copyright Office for the song Happy Birthday. 25 76.78. In that December 1934 Application for Copyright, Summy Co. III 26 claimed to be the proprietor of the copyright as a work for hire by Preston Ware 27 Orem (“Orem”) and claimed the copyrighted new matter as “arrangement by piano 28 solo.” - 13 - Exhibit B Page 68 1 77.79. The lyrics to Happy Birthday to You were not included on the work 2 registered with the Copyright Office as Reg. No. E45655. The application did not 3 contain the names of the Hill Sisters and did not claim copyright in the lyrics to 4 Happy Birthday to You alone or in combination with the melody of Good Morning 5 to All. 6 78.80. The work registered with the Copyright Office as Reg. No. E45655 was 7 not eligible for federal copyright protection in that it consisted entirely of 8 information that was common property and contained no original authorship, except 9 as to the arrangement itself. 10 79.81. On or about February 18, 1935, Summy Co. III filed an Application for 11 Copyright for Republished Musical Composition with new Copyright Matter (Reg. 12 No. E46661) with the Copyright Office for the song Happy Birthday. 13 80.82. In that February 1935 Application for Copyright, Summy Co. III 14 claimed to be the proprietor of the copyright as a work for hire by Orem and claimed 15 the copyrighted new matter as “arrangement for four hands at one piano.” 16 81.83. The lyrics to Happy Birthday to You were not included on the work 17 registered with the Copyright Office as Reg. No. E46661. The application did not 18 contain the names of the Hill Sisters and did not claim copyright in the lyrics to 19 Happy Birthday to You alone or in combination with the melody of Good Morning 20 to All. 21 82.84. The work registered with the Copyright Office as Reg. No. E46661 was 22 not eligible for federal copyright protection in that it consisted entirely of 23 information that was common property and contained no original authorship, except 24 as to the arrangement itself. 25 83.85. On or about April 5, 1935, Summy Co. III filed an Application for 26 Copyright for Republished Musical Composition with new Copyright Matter (Reg. 27 No. E47439) with the Copyright Office for the song Happy Birthday. 28 84.86. In that April 1935 Application for Copyright, Summy Co. III claimed - 14 - Exhibit B Page 69 1 to be the proprietor of the copyright as a work for hire by Orem and claimed the 2 copyrighted new matter as “arrangement of second piano part.” 3 85.87. The lyrics to Happy Birthday to You were not included on the work 4 registered with the Copyright Office as Reg. No. E47439. 5 contain the names of the Hill Sisters and did not claim copyright in the lyrics to 6 Happy Birthday to You alone or in combination with the melody of Good Morning 7 to All. The application did not 8 86.88. The work registered with the Copyright Office as Reg. No. E47439 was 9 not eligible for federal copyright protection in that it consisted entirely of 10 information that was common property and contained no original authorship, except 11 as to the arrangement itself. 12 87.89. On or about April 5, 1935, Summy Co. III filed an Application for 13 Copyright for Republished Musical Composition with new Copyright Matter (Reg. 14 No. E47440) with the Copyright Office for the song Happy Birthday. 15 88.90. In that additional April 1935 Application for Copyright, Summy Co. III 16 claimed to be the proprietor of the copyright as a work for hire by Orem and claimed 17 the copyrighted new matter as “arrangement for six hands at one piano.” 18 89.91. The lyrics to Happy Birthday to You were not included on the work 19 registered with the Copyright Office as Reg. No. E47440. The application did not 20 contain the names of the Hill Sisters and did not claim copyright in the lyrics to 21 Happy Birthday to You alone or in combination with the melody of Good Morning 22 to All. 23 90.92. The work registered with the Copyright Office as Reg. No. E47440 was 24 not eligible for federal copyright protection in that it consisted entirely of 25 information that was common property and contained no original authorship, except 26 as to the arrangement itself. 27 91.93. On December 9, 1935, Summy Co. III filed an Application for 28 Copyright for Republished Musical Composition with new Copyright Matter (Reg. - 15 - Exhibit B Page 70 1 No. E51988) with the Copyright Office for Happy Birthday to You. 2 92.94. In that December 1935 Application for Copyright, Summy Co. III 3 claimed to be the proprietor of the copyright as a work for hire by R.R. Forman 4 (“Forman”) and claimed the copyrighted new matter as “arrangement for Unison 5 Chorus and revised text.” 6 Forman did not write the familiar first verse lyrics to Happy Birthday to You. The 7 sheet music deposited with the application credited Forman only for the 8 arrangement and for the obscure second verse lyrics that lack commercial value, not 9 for the familiar first verse lyrics, and did not credit the Hill Sisters with writing the 10 Upon information and belief, Plaintiffs allege that lyrics to Happy Birthday to You. 11 93.95. For the first time, the lyrics to Happy Birthday to You, including an 12 obscure second verse that lacks commercial value as the revised text, were included 13 on the work registered with the Copyright Office as Reg. No. E51988. However, 14 the December 1935 Application for Copyright did not attribute authorship of the 15 lyrics to either of the Hill Sisters and did not claim copyright in the familiar first 16 verse lyrics to Happy Birthday to You alone or in combination with the melody of 17 Good Morning to All. 18 94.96. The work registered with the Copyright Office as Reg. No. E51988 was 19 expressly limited in scope and neither claimed nor provided copyright protection to 20 the familiar lyrics to Happy Birthday to You. If and to the extent the work registered 21 with the Copyright Office as Reg. No. E51988 had claimed copyright protection to 22 those familiar lyrics, that work was not eligible for federal copyright protection in 23 that it consisted entirely of work that was common property and contained no 24 original authorship, except as to the sheet music arrangement itself. 25 95.97. Based upon information and belief, the work registered as Reg. No. 26 E51988 was not eligible for federal copyright protection because Summy Co. III did 27 not have authorization from the author to publish any part of that work except as to 28 the arrangement and the obscure second verse. - 16 - Exhibit B Page 71 1 96.98. On December 9, 1935, Summy Co. III filed an Application for 2 Copyright for Republished Musical Composition with new Copyright Matter (Reg. 3 No. E51990) with the Copyright Office for Happy Birthday to You. 4 97.99. In that additional December 1935 Application for Copyright, Summy 5 Co. III claimed to be the proprietor of the copyright as a work for hire by Orem and 6 claimed the copyrighted new matter as “arrangement as easy piano solo, with text.” 7 Upon information and belief, Plaintiffs allege that Orem did not write the familiar 8 lyrics to Happy Birthday to You. Upon information and belief, Plaintiffs also allege 9 that the sheet music deposited with the application did not credit either Orem or the 10 11 Hill Sisters for writing the lyrics to Happy Birthday to You. 98.100. Some lyrics to Happy Birthday to You may have been included 12 on the work registered with the Copyright Office as Reg. No. E51990. However, 13 the additional December 1935 Application for Copyright did not attribute authorship 14 of the lyrics to either of the Hill Sisters, did not contain the names of either of the 15 Hill Sisters, and did not claim any copyright in the lyrics to Happy Birthday to You 16 alone or in combination with the melody of Good Morning to All. 17 99.101. The work registered with the Copyright Office as Reg. No. 18 E51990 was expressly limited in scope and neither claimed nor provided copyright 19 protection to the familiar lyrics to Happy Birthday to You. If and to the extent the 20 work registered with the Copyright Office as Reg. No. E51990 had claimed 21 copyright protection to those familiar lyrics, that work was not eligible for federal 22 copyright protection in that it consisted entirely of information that was common 23 property and contained no original authorship, except as to the sheet music 24 arrangement itself. 25 100.102. Based upon information and belief, the work registered as Reg. 26 No. E51990 was not eligible for federal copyright protection because Summy Co. III 27 did not have authorization from the author to publish any part of that work except as 28 to the arrangement. - 17 - Exhibit B Page 72 101.103. 1 Based upon information and belief, in or about February, 1938, 2 Summy Co. III purported to grant to ASCAP the right to license Happy Birthday to 3 You for public performances and to collect fees for such use on behalf of Summy 4 Co. III. ASCAP thus began working as agent for Summy Co. III in collecting fees 5 for Summy Co. III for licensing Happy Birthday to You. 6 102.104. On or about June 8, 1942, Patty Hill and Jessica Hill assigned all 7 of their interest in the 1893, 1896, 1899 and 1907 copyrights to The Hill 8 Foundation. 9 103.105. On October 15, 1942, The Hill Foundation commenced an action 10 against Summy Co. III in the Southern District of New York, captioned The Hill 11 Foundation, Inc. v. Clayton F. Summy Co., Case No. 19-377, for an accounting of 12 the royalties received by Summy Co. III for the licensing of Happy Birthday to You. 13 The Hill Foundation asserted claims under the 1893, 1896, 1899, and 1907 14 copyrights for Good Morning to All and did not claim any copyright to the lyrics to 15 Happy Birthday to You, alone or in combination with the melody of Good Morning 16 to All. 17 104.106. On March 2, 1943, The Hill Foundation commenced an action 18 against the Postal Telegraph Cable Company in the Southern District of New York, 19 captioned The Hill Foundation, Inc. v. Postal Telegraph-Cable Co., Case No. 20- 20 439, for infringement of the Hill Sisters’ purported 1893, 1896, and 1899 copyrights 21 to Good Morning to All. The Hill Foundation asserted claims only under the 1893, 22 1896, and 1899 copyrights for Good Morning to All and did not claim any copyright 23 to the lyrics to Happy Birthday to You, alone or in combination with the melody of 24 Good Morning to All. 25 105.107. Despite the filing of at least four prior cases in the Southern 26 District of New York asserting copyrights to Good Morning to All, there has been 27 no judicial determination of the validity or scope of any copyright related to Good 28 Morning to All. - 18 - Exhibit B Page 73 1 2 3 106.108. In or about 1957, Summy Co. III changed its name to Summy- Birchard Company. 107.109. In 1962, Summy Co. III (renamed as Summy-Birchard 4 Company) filed renewals for each of the six registrations it obtained in 1934 and 5 1935 (Reg. Nos. E45655, E46661, E47439, E47440, E51988, and E51990), each 6 renewal was specifically and expressly confined to the musical arrangements. 7 108.110. In particular, on December 6, 1962, Summy Co. III filed a 8 renewal application for Reg. No. E51988, as employer for hire of Forman. Forman 9 did not write the familiar first verse lyrics to Happy Birthday to You or the 10 combination of those lyrics with the melody of Good Morning to All, and neither 11 Summy Co. III nor Defendants have claimed otherwise. 12 109.111. Also on December 6, 1962, Summy Co. III filed a renewal 13 application for Reg. No. E51990, as employer for hire of Orem. Orem did not write 14 the lyrics to Happy Birthday to You or the combination of those lyrics with the 15 melody of Good Morning to All, and neither Summy Co. III nor Defendants have 16 claimed otherwise. 17 110.112. Summy-Birchard Company was renamed Birch Tree Ltd. in the 18 1970s and was acquired by Warner/Chappell in or about 1998. On information and 19 belief, this entity now operates as “Summy Birchard, Inc.” – currently a subsidiary 20 of Warner/Chappell and Warner/Chappell’s co-defendant herein. 21 Happy Birthday to You – 100 Years Later 22 23 24 111.113. According to a 1999 press release by ASCAP, Happy Birthday to You was the most popular song of the 20th Century. 112.114. The 1998 edition of the Guinness Book of World Records 25 identified Happy Birthday to You as the most recognized song in the English 26 language. 27 28 113.115. Defendant Warner/Chappell currently claims it owns the exclusive copyright to Happy Birthday to You based on the piano arrangements that - 19 - Exhibit B Page 74 1 Summy Co. III published in 1935. 2 114.116. ASCAP provides non-dramatic public performance licenses to 3 bars, clubs, websites, and many other venues. ASCAP “blanket licenses” grant the 4 licensee the right to publicly perform any or all of the over 8.5 million songs in 5 ASCAP’s repertory in exchange for an annual fee. The non-dramatic public 6 performance license royalties are distributed to ASCAP members based on surveys 7 of performances of each ASCAP repertory song across different media. As an 8 ASCAP member and assignee of the copyrights in Happy Birthday to You, 9 Defendant Warner/Chappell obtains a share of blanket license revenue that would 10 otherwise be paid to all other ASCAP members, in proportion to their songs’ survey 11 shares. Plaintiff GMTY’s Use of Happy Birthday to You 12 13 14 115. Plaintiff GMTY is producing a documentary movie, tentatively titled Happy Birthday, about the song Happy Birthday to You. 15 16 116. In one of the proposed scenes to be included in Happy Birthday, the song Happy Birthday to You is to be sung. 17 18 117. During the production process, plaintiff GMTY learned that defendant Warner/Chappell claimed exclusive copyright ownership to Happy Birthday to You. 19 118. Accordingly, in September 2012, plaintiff requested a quote from 20 Warner/Chappell for a synchronization license to use Happy Birthday to You from 21 Warner/Chappell’s website. 22 119. On or about September 18, 2012, defendant Warner/Chappell 23 responded to plaintiff GMTY’s inquiry by demanding that GMTY pay it the sum of 24 $1,500 and enter into a synchronization license agreement to use Happy Birthday to 25 You. 26 120. On or about March 12, 2013, defendant Warner/Chappell again 27 contacted plaintiff GMTY and insisted that GMTY was not authorized to use Happy 28 Birthday to You unless it paid the licensing fee of $1,500 and entered into the - 20 - Exhibit B Page 75 1 synchronization license that Warner/Chappell demanded. 2 121. Because defendant Warner/Chappell notified plaintiff GMTY that it 3 claimed exclusive copyright ownership of Happy Birthday to You, GMTY faced a 4 statutory penalty of up to $150,000 under the Copyright Act if it used the song 5 without Warner/Chappell’s permission if Warner/Chappell, in fact, owned the 6 copyright that it claimed. 7 122. Faced with a threat of substantial penalties for copyright infringement, 8 on or about March 26, 2013, plaintiff GMTY was forced to and did pay defendant 9 Warner/Chappell the sum of $1,500 for a synchronization license and, on or about 10 April 24, 2013, GMTY was forced to and did enter into the synchronization license 11 agreement to use Happy Birthday to You. 12 Plaintiff Siegel’s Use of Happy Birthday to You 13 123. BIG FAN produced a movie titled Big Fan. 14 124. In one of the scenes in Big Fan, the familiar lyrics of the song Happy 15 Birthday to You was sung by the actors. 16 125. (a) 17 before Big Fan was released, BIG FAN retained the services of a music 18 supervisor to secure the rights to all the music that was used in the movie. In the early summer of 2009, after filming was complete but 19 (b) 20 and advised BIG FAN that it would have to obtain a license from 21 Warner/Chappell and pay a fee to Warner/Chappell to perform Happy 22 Birthday to You in the movie because Warner/Chappell claimed to own 23 the exclusive copyright to the Song. 24 (c) 25 producer regarding the copyright claim by Warner/Chappell, BIG FAN 26 reasonably believed that Warner/Chappell owned the copyright to 27 Happy Birthday to You, and would have to obtain a synchronization The music supervisor identified which music was copyrighted, Reasonably relying upon the information provided by the music 28 - 21 - Exhibit B Page 76 1 license from and pay a fee to Warner/Chappell to use the Song in the 2 movie. 3 126. Accordingly, in July 2009, BIG FAN requested that the music 4 supervisor obtain a quote from Warner/Chappell for a Synchronization License to 5 use Happy Birthday to You in Big Fan. 6 127. On or about July 20, 2009, Defendant Warner/Chappell responded to 7 the music supervisor by demanding that BIG FAN pay it the sum of $3,000 and 8 enter into a synchronization license for use of Happy Birthday to You. 9 128. Because Defendant Warner/Chappell notified BIG FAN through the 10 music supervisor that it claimed exclusive copyright ownership of Happy Birthday 11 to You, BIG FAN faced a statutory penalty of $150,000 under the Copyright Act if 12 BIG 13 Warner/Chappell, in fact, owned the copyright that it claimed. FAN used the Song without Warner/Chappell’s permission and 14 129. On July 20, 2009, Plaintiff Siegel as President of BIG FAN executed 15 the synchronization license with Warner/Chappell and agreed to pay $3,000 based 16 upon Big Fan’s theatrical release. 17 130. (a) Faced with a threat of substantial penalties for copyright 18 infringement, on or about September 1, 2009, BIG FAN was forced to, and did, pay 19 defendant Warner/Chappell the sum of $3,000 pursuant to the synchronization 20 license. 21 (b) BIG FAN, the music producer it hired, and Plaintiff Siegel did 22 not know, and had no reason to know, that Warner/Chappell did not own any 23 copyright to Happy Birthday to You, that the rights Warner/Chappell could 24 claim were limited just to the piano arrangements or the obscure second verse 25 of the Song (which was not performed in Big Fan), or that any copyright 26 other than that was invalid or expired. 27 28 - 22 - Exhibit B Page 77 1 (c) BIG FAN, the music producer it hired, and Plaintiff Siegel had 2 no reason to question Warner/Chappell’s claim to own the copyright to the 3 Song. 4 (d) Warner/Chappell did not specify which registration(s) or 5 renewal(s) thereof under which it claimed a copyright to Happy Birthday to 6 You, and thus BIG FAN, the music producer it hired, and Plaintiff Siegel 7 could not investigate Warner/Chappell’s claim to determine whether Warner 8 Chappell owned the copyright it claimed or whether that copyright was valid. 9 (e) The commencement of this action on or about June 13, 2013, 10 was widely reported in the press. Prior to the date when the press first 11 reported the claims asserted herein, no one in the position of BIG FAN, the 12 music producer hired by BIG FAN, or Plaintiff Siegel would know, or have 13 any reason to know, that Warner/Chappell’s copyright claim for Happy 14 Birthday to You was in doubt. 15 (f) Plaintiff Siegel learned of the commencement of this action on or 16 about June 14, 2013, from the press reports. Before then, BIG FAN, the 17 music producer it hired, and Plaintiff Siegel did not know, and had no reason 18 to know, that Warner/Chappell’s copyright claim for Happy Birthday to You 19 had been disputed by anyone or was in doubt. 20 (g) Shortly thereafter, on or about June 19, 2013, and significantly 21 less than three years after he knew or reasonably could or should have known 22 that Warner/Chappell does not own a copyright to the Song, or that its 23 copyright is not valid, plaintiff Siegel commenced a separate class action in 24 Los Angeles County pursuant to the terms of the Synchronization License. 25 Rupa’s Performance of Happy Birthday to You 26 131. Plaintiff Rupa d/b/a RTAF recorded the song Happy Birthday to You at 27 a live show in San Francisco, to be released as part of a “live” album. She learned 28 that defendant Warner/Chappell claimed exclusive copyright ownership to Happy - 23 - Exhibit B Page 78 1 Birthday to You, including the right to issue mechanical licenses. 2 132. Section 115 of the Copyright Act provides for compulsory licenses for 3 the distribution of phonorecords and digital phonorecord deliveries (i.e., Web-based 4 “downloads”) of musical compositions. Failure to obtain such a license prior to 5 distribution of a cover version of a song constitutes a copyright infringement subject 6 to the full remedies of the Copyright Act. 7 133. Accordingly, on June 17, 2013, Plaintiff Rupa provided a Notice of 8 Intention 9 Warner/Chappell $455 for a mechanical license for the reproduction and distribution to Obtain Compulsory License 10 Warner/Chappell and paid of 5,000 copies of the Song. 11 to Plaintiff Majar Use of Happy Birthday to You 12 134. (a) Plaintiff Majar produced the Film entitled “No Subtitles Necessary: 13 László & Vilmos.” The Film follows the lives of renowned cinematographers 14 László Kovacs (“Kovacs”) and Vilmos Zsigmond (“Zsigmond”) from 15 escaping the 1956 Soviet invasion of Hungary to the present day. 16 (b) Plaintiff Majar wished to use the Happy Birthday to You in the 17 opening scene of the Film, wherein Zsigmond and others sang the Song to 18 Kovacs in a celebration of Kovacs’ life and the friendship of the two, thereby 19 setting the tone for the Film. 20 (c) In or around the fall of 2008, during production of the Film, 21 Plaintiff Majar learned from the music clearance supervisor working on the 22 Film that defendant Warner/Chappell claimed exclusive copyright ownership 23 to Happy Birthday to You, including for purposes of issuing synchronization 24 licenses, and that if Majar wished to include the Song in the Film, a license 25 would have to be procured and a fee be paid to Warner/Chappell. 26 director of the Film, James Chressanthis, spoke to experienced producers in 27 the industry, who confirmed that it was common knowledge within the The 28 - 24 - Exhibit B Page 79 1 entertainment industry that Warner/Chappell widely claimed exclusive 2 copyright ownership of the Song. 3 (d) Accordingly, upon making the final determination to include use 4 of the Song in the Film, Plaintiff Majar proceeded to obtain a license for the 5 Song from Warner/Chappell. 6 Plaintiff Majar as the exclusive owner of the copyright in the Song (although 7 it did not specify which registration number(s) or renewal number(s) under 8 which it claimed to own a copyright). Thus, on or about October 29, 2009, 9 Plaintiff Majar paid to defendant Warner/Chappell the sum of $5,000 for a 10 synchronization license to use Happy Birthday in the Film. At the time, 11 Plaintiff Majar did not question and had no reason to question 12 Warner/Chappell’s claim of copyright ownership. Moreover, Plaintiff Majar 13 is informed and believes that Warner/Chappell continued to hold itself out as 14 the exclusive copyright owner of the Song for years after Majar licensed it. 15 (e) Because Indeed, Warner/Chappell held itself out to Defendant Warner/Chappell claimed exclusive 16 copyright ownership of Happy Birthday to You, Plaintiff Majar faced a 17 statutory penalty of $150,000 under the Copyright Act, 17 U.S.C. § 101 et 18 seq., if it used the Song without Warner/Chappell’s permission and 19 Warner/Chappell, in fact, owned the copyright that it claimed. 20 (f) Plaintiff Majar did not question, and had no reason to question, 21 on October 29, 2009 (and continuing thereafter), Warner/Chappell’s claim to 22 own the copyright to the Song. Moreover, Plaintiff Majar did not know, and 23 had no reason to know, on October 29, 2009 (and continuing thereafter), that 24 Warner/Chappell’s copyright claim for Happy Birthday to You had been 25 disputed by anyone. 26 (g) Plaintiff Majar only first learned that Warner/Chappell’s claim of 27 exclusive copyright ownership in the Song was subject to dispute when news 28 of the same was published in a New York Times article on June 13, 2013. - 25 - Exhibit B Page 80 1 Plaintiff Majar contacted counsel and joined as a plaintiff in this action 2 promptly thereafter. 3 Delayed Discovery, Concealment of the Truth Regarding the Limited 4 Copyright, and Equitable Tolling 5 6 7 135. (a) In or about 2012, Plaintiff GMTY’s principal learned of a dispute regarding Defendants’ claim to own the copyright to Happy Birthday to You. (b) On March 12, 2013, however, Defendants informed Plaintiff 8 GMTY’s principal in writing that Plaintiff GMTY was not authorized to use 9 the Song. Before licensing Happy Birthday to You from Defendants and 10 paying a synchronization license fee to Defendants, Plaintiff GMTY did not 11 know, and in the exercise of reasonable care, could not have known, that 12 Defendants’ copyrights in fact did not cover the Song’s familiar lyrics. 13 (c) Plaintiff GMTY thereafter discovered additional facts sufficient 14 to challenge whether Defendants’ copyrights cover the Song’s familiar lyrics. 15 136. (a) Before licensing Happy Birthday to You from Defendants and 16 paying fees for synchronization licenses to Defendants, Plaintiff Siegel and BIG 17 FAN did not know, and in the exercise of reasonable care, could not have known, 18 that Defendants’ copyrights in fact did not cover the Song’s familiar lyrics. 19 (b) After the commencement of this action in 2013, Plaintiff Siegel 20 and BIG FAN thereafter discovered additional facts sufficient to challenge 21 whether Defendants’ copyrights cover the Song’s familiar lyrics. 22 137. (a) Before licensing Happy Birthday to You from Defendants and 23 paying fees for a mechanical license to Defendants, Plaintiff Rupa did not know, 24 and in the exercise of reasonable care, could not have known, that Defendants’ 25 copyrights in fact did not cover the Song’s familiar lyrics. 26 27 (b) Plaintiff Rupa thereafter discovered additional facts sufficient to challenge whether Defendants’ copyrights cover the Song’s familiar lyrics. 28 - 26 - Exhibit B Page 81 1 138. (a) Before licensing Happy Birthday to You from Defendants and 2 paying fees for synchronization licenses to Defendants, Plaintiff Majar did not 3 know, and in the exercise of reasonable care, could not have known, that 4 Defendants’ copyrights in fact did not cover the Song’s familiar lyrics. 5 (b) After the commencement of this action in 2013, Plaintiff Majar 6 thereafter discovered additional facts sufficient to challenge whether 7 Defendants’ copyrights cover the Song’s familiar lyrics. 8 139. At all times relevant hereto, Defendants and their predecessors-in- 9 interest consistently and uniformly insisted they were the owner of the copyright to 10 Happy Birthday to You. 11 140. At all times relevant hereto, Defendants and their predecessors-in- 12 interest consistently and uniformly demanded that all would-be users of Happy 13 Birthday to You obtain licenses or permission from them to use, perform, or publish 14 the Song. 15 141. At all times relevant hereto, Defendants and their predecessors-in- 16 interest consistently and uniformly demanded payment for the right to use, perform, 17 or publish Happy Birthday to You from all would-be users of the Song under and by 18 virtue of their claim of copyright ownership alleged herein. 19 142. At all times relevant hereto, Defendants or their predecessors-in- 20 interest have been in possession of, or have known the terms of: (a) the early 1890s 21 assignment from Patty Hill and Mildred Hill to Summy Co., which related only to 22 Good Morning to All; (b) the 1934 and 1935 assignment from Jessica Hill to Summy 23 Co. of only the rights to various piano arrangements to the musical composition 24 Good Morning to All; and (c) the 1944 assignment from Patty Hill and Jessica Hill 25 via the Hill Foundation to Summy Co. Those assignments allowed Defendants and 26 their predecessors-in-interest to know that they did not acquire any rights to the 27 Happy Birthday to You lyrics from Patty Hill, Jessica Hill, or the Hill Foundation. 28 - 27 - Exhibit B Page 82 1 143. For that reason, among others, knowing that the 1935 copyrights 2 E51988 and E51990 did not cover the Song’s familiar lyrics, when Summy Co. 3 commenced three lawsuits alleging copyright infringement related to Happy 4 Birthday to You after acquiring whatever limited rights it ever obtained from the 5 Hill sisters and the Hill Foundation, it did not even mention either of the 1935 6 copyrights. Those assignments were not publicly disclosed at any time prior to the 7 commencement of this action. 8 144. At all times relevant hereto, Defendants and their predecessors-in- 9 interest were told repeatedly, and knew or should have known, that: (a) neither the 10 Hill sisters nor the Hill Foundation transferred to Summy Co. any rights to the 11 Happy Birthday to You lyrics; (b) at most, Summy Co. obtained from the Hill sisters 12 or the Hill Foundation only limited rights to various piano arrangements of the 13 melody shared by Good Morning to All and Happy Birthday to You; (c) the 14 copyrights to that common melody expired no later than September 3, 1949, by 15 which date the melody entered the public domain; (d) the 1935 work-for-hire 16 copyrights are limited to only the new work added by Summy Co.’s employees, 17 Forman and Orem; (e) Summy’s employees, Forman and Orem, did not write the 18 familiar Happy Birthday to You lyrics; and (f) the 1935 work-for-hire copyrights did 19 not cover the Happy Birthday to You lyrics. 20 145. For example, in or about 1934, in a motion to dismiss Hill v. Harris, 21 Eq. No. 78-350, defendants Irving Berlin and Sam Harris asserted that the original 22 copyright to Good Morning to All was not properly renewed and therefore had 23 lapsed in 1921. In the motion to dismiss, those defendants also asserted that the 24 complaint in that action failed to allege that Summy Co. was “the proprietor of the 25 composition in question,” and thus could not copyright it. 26 146. On or about April 18, 1945, the defendant answered the complaint in 27 Clayton F. Summy Co. v. Louis Marx & Co., No. 30-285 (S.D.N.Y.), and asserted 28 - 28 - Exhibit B Page 83 1 that the original copyright to Good Morning to All was not properly renewed and 2 therefore had lapsed in 1921. 3 147. Upon information and belief, Defendants’ predecessor-in-interest 4 received an inter-office communication from Universal City Studios on or about 5 July 1, 1964, stating that the copyright asserted and relied upon by Defendants and 6 their predecessors “covers only the particular [piano] arrangement” and that “no one 7 could claim copyright in the new [Happy Birthday] lyrics.” The substance of that 8 communication was not publicly disclosed prior to the commencement of this 9 action. 10 148. Likewise, upon information and belief, beginning in 1963, in meetings 11 with Defendants’ predecessor-in-interest and in correspondence with the Harry Fox 12 Agency (“Fox”), as agent for Defendants’ predecessor-in-interest Summy Co. 13 (which is in the possession of Defendants and their predecessors but which was 14 never publicly disclosed), Walt Disney Productions (“Disney”) disputed the scope 15 and ownership of the copyright to Happy Birthday to You. 16 149. In an October 18, 1963, letter, to Fox, as agent for Summy Co., 17 Disney’s Music Manager detailed their copyright research of Happy Birthday to 18 You, beginning with Mildred and Patty Hill’s publication of Good Morning to All in 19 Song Stories for the Kindergarten, and noted that “no one knows who first changed 20 the words “good morning” to ‘happy birthday.” Disney’s conclusion was that “the 21 song together with the lyrics are now in the public domain.” [WC1411- 22 12/CONFIDENTIAL] The substance of that communication was not disclosed to 23 the public prior to the commencement of this action. 24 150. On or about May 12, 1964, in a letter to the Fox, as agent for Summy 25 Co., Disney’s Music Manager asserted that “‘HAPPY BIRTHDAY TO YOU’ is 26 definitely in the public domain.” [WC 1416/CONFIDENTIAL] The substance of 27 that communication was not disclosed to the public prior to the commencement of 28 this action. - 29 - Exhibit B Page 84 1 151. In a letter to counsel for Defendants’ predecessor Summy Co. dated 2 November 6, 1964, Disney offered $1,000 for five uses of Happy Birthday to You 3 “not in acknowledgment that there is a protected right in [the Song] but to pass over 4 that question and get a whitewash from your client.” [WC1414/CONFIDENTIAL] 5 The substance of that communication was not disclosed to the public prior to the 6 commencement of this action. 7 152. On December 13, 1971, Disney’s counsel wrote to Fox, as agent for 8 Summy Co., and reiterated its prior offer to pay $250 as a “tribute” for each use of 9 Happy Birthday to You for “the simple reason that although we firmly believe that 10 we would prevail in any litigation” that “business practices dictates that a small 11 payment is better than expensive litigation.” 12 having “recontacted various copyright experts,” Disney was “willing once and for 13 all to fight this matter in the event you are asking an amount greater than previously 14 paid by us.” [WC1415/CONFIDENTIAL] The substance of that communication 15 was not disclosed to the public prior to the commencement of this action. Disney’s counsel also noted that 16 153. In a letter to Fox and Defendants’ predecessor-in-interest Summy- 17 Birchard Music dated May 11, 1983, Disney’s Music Manager responded to a 18 request from Fox, on behalf of Summy-Birchard Music, for a $5,000 fee for a ten- 19 year license of Happy Birthday to You for an exhibit at the Horizons Pavilion at 20 EPCOT by offering a “tribute payment” of just $250 to use the Song for a decade. 21 Disney’s Music Manager stated that the original song Good Morning to All and the 22 “alleged adaptation,” i.e., Happy Birthday to You, “are both in the public domain 23 around the world,” but offered the nominal sum “only to avoid litigation to prove 24 that they are free to use.” [WC1422-23/CONFIDENATIAL] The substance of that 25 communication was not disclosed to the public prior to the commencement of this 26 action. 27 28 - 30 - Exhibit B Page 85 1 154. At various times relevant hereto, Defendants and their predecessors-in- 2 interest claimed that Summy Co.’s employee Orem may have written the familiar 3 Happy Birthday to You lyrics, either alone, together, or with Mildred or Patty Hill. 4 155. At various times relevant hereto, Defendants and their predecessors-in- 5 interest claimed that Mildred Hill wrote the familiar Happy Birthday to You lyrics, 6 either alone or together with Patty Hill or with Summy Co.’s employee Orem. 7 156. At all times relevant hereto, Defendants and their predecessors-in- 8 interest concealed the fact that Summy Co.’s employees, Forman and Orem, did not 9 write the familiar Happy Birthday to You lyrics, either alone, together, or with 10 Mildred or Patty Hill. 11 157. At various times relevant hereto, Defendants and their predecessors-in- 12 interest encouraged others to conceal the fact that Summy Co.’s employees, Forman 13 and Orem, did not write the familiar Happy Birthday to You lyrics, either alone, 14 together, or with Mildred or Patty Hill. 15 158. At all times relevant hereto, Defendants and their predecessors-in- 16 interest concealed the fact that the 1935 copyrights covered only the piano 17 arrangements composed by Summy Co.’s employees-for-hire and did not cover the 18 Happy Birthday to You lyrics. 19 159. At various times relevant hereto, Defendants and their predecessors-in- 20 interest encouraged others to conceal the fact that the 1935 copyrights covered only 21 the piano arrangements composed by Summy Co.’s employees-for-hire and did not 22 cover the Happy Birthday to You lyrics. 23 160. In part as a result of the actions of Defendants and their predecessors- 24 in-interest alleged herein, Plaintiffs and all other users of Happy Birthday to You did 25 not know, had no reason to know, and in the exercise or reasonable care could not 26 know that Defendants and their predecessors-in-interest did not own a copyright to 27 the Song itself, but rather only to two piano arrangements composed by Summy 28 Co.’s employees for hire. - 31 - Exhibit B Page 86 1 161. In part as a result of the misrepresentations and concealment of material 2 fact alleged above, and in part as a result of the complexity of the historical record 3 surrounding the song, in the exercise of reasonable care, Plaintiffs did not know, had 4 no reason to know, and in the exercise of reasonable care could not know that 5 Defendants did not own any copyright to the familiar Happy Birthday to You lyrics. 6 162. In part as a result of the misrepresentations and concealment of material 7 fact alleged above, and in part as a result of the complexity of the historical record 8 surrounding the song, users of the Song did not know, had no reason to know, and in 9 the exercise of reasonable care could not know that Defendants and their 10 predecessors-in-interest did not own any copyright to the familiar Happy Birthday to 11 You lyrics. 12 CLASS ALLEGATIONS 13 135.163. Plaintiffs GMTY, Siegel, Rupa, and Majar bring this action 14 pursuant to Rule 23(a)-(b) of the Federal Rules of Civil Procedure as a class action 15 on behalf of themselves and all others similarly situated for the purpose of asserting 16 the claims alleged in this Consolidated Fourth Amended Complaint on a common 17 basis. 18 136.164. 19 All persons or entities (excluding Defendants’ directors, officers, 20 employees, and affiliates) who entered into a license with 21 Defendants or their predecessors-in-interestWarner/Chappell, or 22 paid Warner/Chappell or SBI,Defendants or their predecessors-in- 23 interest, directly or indirectly through its agents, a licensing fee for 24 the song Happy Birthday to You at any time from June 18, 25 2009since at least September 3, 1949 (the latest date on which the 26 copyright to Good Morning to All expired), until Defendants’ 27 conduct as alleged herein has ceased. The proposed Class is comprised of: 28 - 32 - Exhibit B Page 87 1 137.165. Although Plaintiffs GMTY, Siegel, Rupa, and Majar do not 2 know the exact size of the Class or the identities of all members of the Class, upon 3 information and belief that information can be readily obtained from the books and 4 records of defendant Warner/Chappell. Plaintiffs believe that the Class includes 5 thousands of persons or entities who are widely geographically disbursed. Thus, the 6 proposed Class is so numerous that joinder of all members is impracticable. 7 8 9 138.166. questions of law and fact including: a. 10 11 whether Happy Birthday to You is in the public domain and dedicated to public use; b. 12 13 The claims of all members of the Class involve common whether the 1935 copyrights claimed by Warner/Chappell cover the popular lyrics to Happy Birthday to You; c. whether Defendants and their predecessors-in-interest knew or should 14 have known that the 1935 copyrights did not cover the popular Happy 15 Birthday to You lyrics; 16 d. whether Defendants and their predecessors-in-interest misrepresented 17 that the 1935 copyrights covered the familiar Happy Birthday to You 18 lyrics; 19 e. Defendants and their predecessors-in-interest concealed the fact that the 20 1935 copyrights covered only the piano arrangements composed by 21 Summy Co.’s employees-for-hire, not the familiar Happy Birthday to 22 You lyrics; 23 f. whether, in the exercise of reasonable care, Plaintiffs and the other 24 members of the Class knew or could have known that Defendants did 25 not own any copyright to the familiar Happy Birthday to You lyrics; 26 b.g. 27 28 whether the commencement of any applicable statute of limitations was tolled and, if so, for how long; c.h. whether the 1935 copyrights claimed by Warner/Chappell are valid; - 33 - Exhibit B Page 88 1 d.i. whether Warner/Chappell is the exclusive owner of the copyright to 2 Happy Birthday to You and is thus entitled to all of the rights conferred 3 in 17 U.S.C. § 102; 4 e.j. 5 6 whether Warner/Chappell has the right to collect fees for the use of Happy Birthday to You; f.k. whether Warner/Chappell has violated the law by demanding and 7 collecting fees for the use of Happy Birthday to You despite not having 8 a valid copyright to the song; and 9 g.l. whether Warner/Chappell is required to return unlawfully obtained 10 payments to plaintiffs GMTY, Siegel, Rupa and Majar and the other 11 members of the Class and, if so, what amount is to be returned. 12 13 14 139.167. With respect to Claims III and VII, the common questions of law and fact predominate over any potential individual issues. 140.168. Plaintiffs GMTY, Siegel, Rupa and Majar’s claims are typical of 15 the claims of all other members of the Class and plaintiffs GMTY, Siegel, Rupa and 16 Majar’s interests do not conflict with the interests of any other member of the Class, 17 in that plaintiffs and the other members of the Class were subjected to the same 18 unlawful conduct. 19 141.169. Plaintiffs GMTY, Siegel, Rupa and Majar are committed to the 20 vigorous prosecution of this action and have retained competent legal counsel 21 experienced in class action and complex litigation. 22 142.170. Plaintiffs are adequate representatives of the Class and, together 23 with their attorneys, are able to and will fairly and adequately protect the interests of 24 the Class and its members. 25 143.171. A class action is superior to other available methods for the fair, 26 just, and efficient adjudication of the claims asserted herein. Joinder of all members 27 of the Class is impracticable and, for financial and other reasons, it would be 28 impractical for individual members of the Class to pursue separate claims. - 34 - Exhibit B Page 89 1 172. Moreover, the prosecution of separate actions by individual members 2 of the Class would create the risk of varying and inconsistent adjudications, and 3 would unduly burden the courts. 4 5 144.173. Plaintiffs GMTY, Siegel, Rupa and Majar anticipate no difficulty in the management of this litigation as a class action. 6 FIRST CLAIM FOR RELIEF 7 DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201 8 (On Behalf Of Plaintiffs And The Class) 9 (Against All Defendants) 10 11 12 145.174. Plaintiffs repeat and reallege paragraphs 1 through 14573 set forth above as though they were fully set forth herein. 146.175. Plaintiffs bring these claims individually on behalf of themselves 13 and on behalf of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules 14 of Civil Procedure. 15 147.176. Plaintiffs seek adjudication of an actual controversy arising 16 under the Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants’ 17 purported copyright claim to Happy Birthday to You. Plaintiffs seek the Court’s 18 declaration that the Copyright Act does not bestow upon Warner/Chappell and/or 19 SBI the rights it has asserted and enforced against plaintiffs and the other members 20 of the Class. This is because either: (a) the 1935 registrations E51988 and E51990, 21 under which Warner/Chappell claims those copyrights, and the resulting copyrights 22 do not purport to cover and do not cover the familiar lyrics to Happy Birthday to 23 You, but instead are limited just to the particular arrangements written by Forman or 24 Orem (and, in the case of E51988, the obscure second verse which has no 25 commercial value); or (b) if and to the extent that those copyrights purport to cover 26 the familiar lyrics to Happy Birthday to You, the copyrights are invalid or have 27 expired. 28 148.177. Defendants assert that they are entitled to mechanical and - 35 - Exhibit B Page 90 1 performance royalties pursuant to 17 U.S.C. § 115 for the creation and distribution 2 of phonorecords and digital downloads of the composition Happy Birthday to You, 3 under threat of a claim of copyright infringement. 4 149.178. Defendant Warner/Chappell demanded that plaintiff GMTY 5 enter into a synchronization license agreement to use Happy Birthday to You and 6 pay Warner/Chappell the sum of $1,500 for that synchronization license based upon 7 its claim of copyright ownership. 8 nature, and GMTY’s entering into the license agreement and payment of $1,500 was 9 involuntary. 10 150.179. Warner/Chappell’s demand was coercive in Plaintiff GMTY’s claim presents a justiciable controversy 11 because plaintiff GMTY’s agreement to pay defendant Warner/Chappell and its 12 actual payment to Warner/Chappell for use of the song Happy Birthday to You in its 13 film was the involuntary result of Warner/Chappell’s assertion of a copyright and 14 the risk that plaintiff GMTY would be exposed to substantial statutory penalties 15 under the Copyright Act had it failed to enter such an agreement and pay 16 Warner/Chappell the price it demanded. 17 151.180. Defendant Warner/Chappell demanded that BIG FAN as 18 assignor of plaintiff Siegel enter into the Synchronization License agreement to use 19 Happy Birthday to You and pay Warner/Chappell the sum of $3,000 for that 20 Synchronization 21 ownership. Warner/Chappell’s demand was coercive in nature, and BIG FAN’S 22 entering into the Synchronization License and payment of $3,000 was involuntary. 23 152.181. License based upon its claim of copyright Plaintiff Siegel’s claim presents a justiciable controversy because 24 plaintiff Siegel’s agreement to pay defendant Warner/Chappell and its actual 25 payment to Warner/Chappell for use of the song Happy Birthday to You in its film 26 Big Fan, was the involuntary result of Warner/Chappell’s assertion of a copyright 27 and the risk that plaintiff Siegel would be exposed to substantial statutory penalties 28 under the Copyright Act had it failed to enter such an agreement and pay - 36 - Exhibit B Page 91 1 Warner/Chappell the price it demanded, but then used Happy Birthday to You in its 2 film anyway. 3 153.182. Plaintiff Rupa’s claim presents a justiciable controversy because 4 plaintiff Rupa’s agreement to pay defendant Warner/Chappell and its actual 5 payment to Warner/Chappell for use of the song Happy Birthday to You in her 6 album, was the involuntary result of Warner/Chappell’s assertion of a copyright and 7 the risk that plaintiff Rupa would be exposed to substantial statutory penalties under 8 the Copyright Act had she failed to enter such an agreement and pay 9 Warner/Chappell standard mechanical license royalties it demanded, but then paid 10 11 for the mechanical license anyway. 154.183. Defendants demanded that Plaintiff Majar pay to Defendants a 12 licensing fee in the sum of $5,000 pursuant to Defendants’ claim of copyright 13 ownership, in order for Plaintiff Majar to use Happy Birthday in the Film. 14 Defendants’ demand was coercive in nature and Majar’s agreement to pay the fee 15 was involuntary. 16 155.184. Plaintiff Majar's claim presents a justiciable controversy because 17 its actual payment of Defendants’ demanded fee to use Happy Birthday in the Film 18 was the involuntary result of Defendants’ assertion of a copyright and the risk that 19 Plaintiff Majar would be exposed to substantial statutory penalties under the 20 Copyright Act had it failed to seek Defendants’ approval to use the Song and/or 21 failed to pay Defendants’ demanded fee. 22 156.185. Plaintiffs seek the Court’s determination as to whether 23 Defendants are entitled to assert ownership of the copyright to Happy Birthday to 24 You against Plaintiffs pursuant to the Copyright Act as Defendants claim, or whether 25 Defendants are wielding a false claim of ownership to inhibit Plaintiffs’ use and 26 enjoyment (and the public’s use and enjoyment) of intellectual property which is 27 rightfully in the public domain. 28 157.186. If and to the extent that Defendants rely upon the 1893, 1896, - 37 - Exhibit B Page 92 1 1899, or 1907 copyrights for the melody for Good Morning to All, those copyrights 2 expired or were forfeited as alleged herein. 3 158.187. As alleged above, the 1893 and 1896 copyrights to the original 4 and revised versions of Song Stories for the Kindergarten, which contained the song 5 Good Morning to All, were not renewed by Summy Co. or Summy and accordingly 6 expired in 1921 and 1924, respectively. 7 159.188. As alleged above, the 1893 copyright to Song Stories for the 8 Kindergarten and the 1899 copyright to Song Stories for the Sunday School, which 9 contained Good Morning to All, and the 1907 copyright to Good Morning to All 10 were not renewed by Summy Co. before Summy Co. was dissolved in 1920 and 11 accordingly, those copyrights expired in 1927 and 1935, respectively. 12 160.189. The 1893, 1896, 1899, and 1907 copyrights to Good Morning to 13 All were forfeited by the republication of Good Morning to All in 1921 without 14 proper notice of its original 1893 copyright. 15 16 17 161.190. The copyright to Good Morning to All expired in 1921 because the 1893 copyright to Song Stories for the Kindergarten was not properly renewed. 162.191. The piano arrangements for Happy Birthday to You published by 18 Summy Co. III in 1935 (Reg. Nos. E51988 and E51990): (a) do not give 19 Warner/Chappell copyrights to the familiar lyrics to Happy Birthday to You, but 20 instead are limited just to the particular arrangements written by Forman or Orem 21 (and, in the case of E51988, the obscure second verse which has no commercial 22 value); and (b) were not eligible for federal copyright protection because those 23 works did not contain original works of authorship, except to the extent of the piano 24 arrangements themselves. 25 163.192. The 1934 and 1935 copyrights pertained only to the piano 26 arrangements or the obscure second verse, not to the melody or familiar first verse 27 lyrics of the song Happy Birthday to You. 28 164.193. The registration certificates for The Elementary Worker and His - 38 - Exhibit B Page 93 1 Work in 1912, Harvest Hymns in 1924, and Children’s Praise and Worship in 1928, 2 which did not attribute authorship of the lyrics to Happy Birthday to You to anyone, 3 are prima facie evidence that the lyrics were not authored by the Hill Sisters. 4 165.194. If declaratory relief is not granted, defendant Warner/Chappell 5 will continue wrongfully to assert the exclusive copyright to Happy Birthday to You 6 at least until 2030, when the current term of the copyright expires under existing 7 copyright law. 8 166.195. 9 (a) Plaintiffs therefore request a declaration that: defendant Warner/Chappell and defendant SBI do not own the 10 copyright to, or possess the exclusive right to reproduce, distribute, or 11 publicly perform, Happy Birthday To You; 12 (b) 13 copyright to Happy Birthday to You, it is limited to four specific piano 14 arrangements or an obscure second verse that has no commercial value, 15 (c) 16 Warner/Chappell and defendant SBI may own or ever owned are 17 invalid or have expired; 18 (d) 19 exclusive right to demand or grant a license for use of Happy Birthday 20 To You; and 21 (e) 22 to the public use. 23 /// 27 Happy Birthday to You is in the public domain and is dedicated /// 26 defendant Warner/Chappell and defendant SBI do not own the /// 25 any other copyright to Happy Birthday to You that defendant /// 24 if defendant Warner/Chappell and defendant SBI own any /// 28 - 39 - Exhibit B Page 94 1 SECOND CLAIM FOR RELIEF 2 UPON ENTRY OF DECLARATORY JUDGMENT 3 DECLARATORY AND INJUNCTIVE RELIEF 4 PURSUANT TO 28 U.S.C § 2202 5 (On Behalf of Plaintiffs and the Class) 6 (Against All Defendants) 7 8 9 167.196. Plaintiffs repeat and reallege paragraphs 1 through 19567 set forth above as though they were fully set forth herein. 168.197. Plaintiffs bring these claims individually on their own behalf and 10 on behalf of the Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil 11 Procedure. 12 169.198. Under 28 U.S.C. § 2202 empowers this Court to grant, 13 “necessary or proper relief based on a declaratory judgment or decree . . . after 14 reasonable notice and hearing, against any adverse party whose rights have been 15 determined by such judgment.” 16 170.199. Plaintiffs and the other proposed Class members have been 17 harmed, 18 Warner/Chappell’s takings. 19 20 and 171.200. Defendants have been unjustly enriched, by Defendant Plaintiffs seek relief for themselves and the other members of the proposed Class upon the entry of declaratory judgment upon Claim I, as follows: 21 (a) 22 making further representations of ownership of the copyright to Happy 23 Birthday To You; 24 (b) 25 to Defendants, directly or indirectly through its agents, in connection with the 26 purported licenses it granted to Plaintiffs GMTY, Siegel, Rupa and Majar and 27 the other Class members; 28 (c) an injunction to prevent Defendants Warner/Chappell and SBI from restitution to Plaintiffs and the other Class members of license fees paid an accounting for all monetary benefits obtained by Defendants, - 40 - Exhibit B Page 95 1 directly or indirectly through its agents, from plaintiffs and the other Class 2 members in connection with its claim to ownership of the copyright to Happy 3 Birthday to You; and 4 (d) such other further and proper relief as this Court sees fit. 5 THIRD CLAIM FOR RELIEF 6 UNFAIR BUSINESS ACTS AND PRACTICES IN VIOLATION OF 7 CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200, ET SEQ. 8 (On Behalf of Plaintiffs and the Class) 9 (Against All Defendants) 10 11 12 172.201. Plaintiffs repeat and reallege paragraphs 1 through 17372 set forth above as though they were fully set forth herein. 173.202. Plaintiffs GMTY, Siegel, Rupa, and Majar bring these claims 13 individually on their own behalf, and also on behalf of the Class pursuant to Rule 14 23(b)(3) of the Federal Rules of Civil Procedure. 15 174.203. As alleged herein, Plaintiffs GMTY, Siegel, Rupa and Majar and 16 the other Class members have paid licensing fees to defendants Warner/Chappell 17 and/or SBI and have therefore suffered injury in fact and have lost money or 18 property as a result of Defendants’ conduct. 19 175.204. California’s Unfair Competition Laws, Business & Professions 20 Code §§ 17200 et seq. (“UCL”), prohibit any unlawful or unfair business act or 21 practice. 22 23 24 176.205. UCL § 17200 further prohibits any fraudulent business act or practice. 177.206. Defendants’ actions, claims, nondisclosures, and misleading 25 statements, as alleged in this Complaint, were unfair, false, misleading, and likely to 26 deceive the consuming public within the meaning of UCL §§ 17200, 17500. 27 28 178.207. The conduct of Defendants in exerting control over exclusive copyright ownership to Happy Birthday to You to extract licensing fees is deceptive - 41 - Exhibit B Page 96 1 and misleading because neither Warner/Chappell nor SBI own the rights to Happy 2 Birthday to You. 3 179.208. Plaintiffs and the other members of the Class have, in fact, been 4 deceived as a result of their reasonable reliance upon Defendants’ materially false 5 and misleading statements and omissions, as alleged above. 6 180.209. As a result of Defendants’ unfair and fraudulent acts and 7 practices as alleged above, Plaintiffs and the other Class members have suffered 8 substantial monetary injuries. 9 181.210. Plaintiffs and the other Class members reserve the right to allege 10 other violations of law which constitute other unfair or deceptive business acts or 11 practices. Such conduct is ongoing and continues to this date. 12 13 14 182.211. As a result of its deception, Defendants Warner/Chappell and SBI have been able to reap unjust revenue and profit. 183.212. Upon information and belief, Defendants have collected and 15 continue to collect at least $2 million per year in licensing fees for Happy Birthday 16 to You. Therefore, the amount in controversy exceeds $5 million in the aggregate. 17 184.213. Unless restrained and enjoined, Defendants will continue to 18 engage in the above-described conduct. 19 appropriate. 20 185.214. Accordingly, injunctive relief is Plaintiffs, individually on their own behalf and on behalf of the 21 other members of the Class, seek restitution and disgorgement of all money obtained 22 from Plaintiffs and the other members of the Class, collected as a result of unfair 23 competition, and all other relief this Court deems appropriate, consistent with UCL 24 § 17203. 25 FOURTH CLAIM FOR RELIEF 26 BREACH OF CONTRACT 27 (On Behalf of Plaintiffs and the Class) 28 (Against All Defendants) - 42 - Exhibit B Page 97 1 187. Plaintiffs repeat and reallege each and every foregoing allegation as 2 though fully set forth herein. 3 188. Plaintiffs entered into license agreements with Defendant 4 Warner/Chappell wherein Warner/Chappell represented and warranted that it and/or 5 its co-Defendant SBI owned the rights to Happy Birthday as licensed therein. 6 189. Plaintiffs are informed and believe that Defendants’ licensing 7 agreements are the same or substantially similar as to all Class members, 8 particularly with respect to Defendants’ claim of ownership of the copyright to 9 Happy Birthday. 10 11 190. Plaintiffs and the Class have satisfied their obligations under each such licensing agreement with Warner/Chappell. 12 191. As alleged herein, Defendants do not own the copyright interests 13 claimed in Happy Birthday and, as a result of its unlawful and false assertions of the 14 same, Defendants have violated the representations and warranties made in the 15 licensing agreements, thereby materially breaching the licensing agreements. 16 17 192. By reason of the foregoing, Plaintiffs and the Class have been damaged in an amount to be determined at trial. 18 FIFTH CLAIM FOR RELIEF 19 COMMON LAW FOR MONEY HAD AND RECEIVED 20 (On Behalf of Plaintiffs and the Class) 21 (Against All Defendants) 22 193. Plaintiffs repeat and reallege each and every foregoing 23 allegationparagraphs 1 through 192 set forth above as though they were fully set 24 forth herein. 25 194. Within the last four years, Defendants Warner/Chappell and/or SBI 26 became indebted to Plaintiffs and all class members for money had and received by 27 Defendants for the use and benefit of Plaintiffs and class members. The money in 28 equity and good conscience belongs to Plaintiffs and class members. - 43 - Exhibit B Page 98 1 SIXTH CLAIM FOR RELIEF 2 RESCISSION FOR FAILURE OF CONSIDERATION 3 (On Behalf of Plaintiffs and the Class) 4 (Against All Defendants) 5 6 7 8 9 10 195. Plaintiffs repeat and reallege each and every foregoing allegation paragraphs 1 through 194 set forth above as though they were fully set forth herein. 196. Defendants’ purported licenses were worthless and ineffective, and do not constitute valid consideration. 197. The complete lack of consideration obviates any need for notice to Defendants. 11 SEVENTH CLAIM FOR RELIEF 12 FALSE ADVERTISING LAWS IN VIOLATION OF 13 CALIFORNIA BUSINESS & PROFESSIONS CODE §§ 17500, ET SEQ. 14 (On Behalf of Plaintiffs and the Class) 15 (Against All Defendants) 16 17 198. Plaintiffs repeat and reallege each and every foregoing allegation paragraphs 1 through 197 set forth above as though they were fully set forth herein. 18 199. On information and belief, Defendants Warner/Chappell and SBI 19 intended to induce the public to enter into an obligation related to its alleged 20 property, namely the composition Happy Birthday to You. 21 200. Defendants Warner/Chappell and/or SBI publicly disseminated 22 advertising which contained statements which were untrue and misleading and 23 which concerned the composition Happy Birthday to You, for which they 24 improperly sought and received licensing fees. Defendants knew, or in the exercise 25 of reasonable care should have known, that these statements were untrue and 26 misleading. 27 28 201. Plaintiffs and class members have suffered injury in fact and have lost money as a result of such unfair competition. - 44 - Exhibit B Page 99 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiffs GMTY, Siegel, Rupa and Majar on behalf of 3 themselves and the other members of the Class, pray for judgment against 4 Defendants as follows: 5 A. certifying the Class as requested herein; 6 B. declaring that the song Happy Birthday to You is not protected by 7 federal copyright law, is dedicated to public use, and is in the public domain; 8 C. 9 asserting any copyright to the song Happy Birthday to You; permanently enjoining Defendants Warner/Chappell and SBI from 10 D. 11 charging or collecting any licensing or other fees for use of the song Happy 12 Birthday to You; 13 E. 14 Warner/Chappell and SBI unlawfully collected from Plaintiffs, the other 15 members of the Class, and ASCAP for use of the song Happy Birthday to 16 You; 17 F. 18 and the other members of the Class all the licensing or other fees they have 19 collected from them, directly or indirectly through its agents, for use of the 20 song Happy Birthday to You, together with interest thereon; 21 G. 22 defendant Warner/Chappell and SBI’s prior acts and practices; 23 H. 24 and 25 I. 26 proper. 27 28 permanently enjoining Defendants Warner/Chappell and SBI from imposing a constructive trust upon the money Defendants ordering Defendants Warner/Chappell and SBI to return to Plaintiffs awarding Plaintiffs and the other members of the Class restitution for awarding Plaintiffs and the Class reasonable attorneys’ fees and costs; granting such other and further relief as the Court deems just and /// /// - 45 - Exhibit B Page 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Dated: October 296, 2015April 18, 2014 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP By: s/Betsy C. Manifold BETSY C. MANIFOLD FRANCIS M. GREGOREK (144785) gregorek@whafh.com BETSY C. MANIFOLD (182450) manifold@whafh.com RACHELE R. RICKERT (190634) rickert@whafh.com MARISA C. LIVESAY (223247) livesay@whafh.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice) rifkin@whafh.com JANINE POLLACK (pro hac vice) pollack@whafh.com 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212-545-4753 Interim Lead Class Counsel for Plaintiffs 20 21 22 23 24 RANDALL S. NEWMAN PC RANDALL S. NEWMAN (190547) rsn@randallnewman.net 37 Wall Street, Penthouse D New York, NY 10005 Telephone: 212/797-3737 Facsimile: 212/797-3172 25 26 27 28 DONAHUE GALLAGHER WOODS LLP WILLIAM R. HILL (114954) rock@donahue.com ANDREW S. MACKAY (197074) andrew@donahue.com - 46 - Exhibit B Page 101 1 2 3 4 5 6 7 8 9 10 11 12 DANIEL J. SCHACHT (259717) daniel@donahue.com th 1999 Harrison Street, 25 Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 GLANCY PRONGAY & MURRAY, LLP LIONEL Z. GLANCY (134180) lglancy@glancylaw.com MARC L. GODINO (182689) mgodino@glancylaw.com KARA M. WOLKE (241521) kwolke@glancylaw.com 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 20 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) gibbs@huntortmann.com OMEL A. NIEVES (134444) nieves@nieves-law.com KATHLYNN E. SMITH (234541) smith@huntortmann.com 301 North Lake Avenue, 7th Floor Pasadena, CA 91101 Telephone 626/440-5200 Facsimile 626/796-0107 21 Counsel for Plaintiffs 13 14 15 16 17 18 19 22 23 24 25 26 27 28 - 47 - Exhibit B Page 102 1 DEMAND FOR JURY TRIAL 2 Plaintiffs Good Morning To You Productions Corp. Robert Siegel, Rupa 3 Marya and Majar Productions, LLC, hereby demand a trial by jury to the extent that 4 the allegations contained herein are triable by jury under Rules 38-39 of the Federal 5 Rules of Civil Procedure 38-39 and Civil L.R. 38-1. 6 7 Dated: October 29, 2015April 18, 2014 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 By: s/Betsy C. Manifold BETSY C. MANIFOLD FRANCIS M. GREGOREK (144785) gregorek@whafh.com BETSY C. MANIFOLD (182450) manifold@whafh.com RACHELE R. RICKERT (190634) rickert@whafh.com MARISA C. LIVESAY (223247) livesay@whafh.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice) rifkin@whafh.com JANINE POLLACK (pro hac vice) pollack@whafh.com 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212-545-4753 24 25 Interim Lead Class Counsel for Plaintiffs 26 27 28 RANDALL S. NEWMAN PC RANDALL S. NEWMAN (190547) rsn@randallnewman.net 37 Wall Street, Penthouse D - 48 - Exhibit B Page 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 New York, NY 10005 Telephone: 212/797-3737 Facsimile: 212/797-3172 DONAHUE GALLAGHER WOODS LLP WILLIAM R. HILL (114954) rock@donahue.com ANDREW S. MACKAY (197074) andrew@donahue.com DANIEL J. SCHACHT (259717) daniel@donahue.com th 1999 Harrison Street, 25 Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 GLANCY PRONGAY & MURRAY, LLP LIONEL Z. GLANCY (134180) lglancy@glancylaw.com MARC L. GODINO (182689) mgodino@glancylaw.com KARA M. WOLKE (241521) kwolke@glancylaw.com 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 25 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) gibbs@huntortmann.com OMEL A. NIEVES (134444) nieves@nieves-law.com KATHLYNN E. SMITH (234541) smith@huntortmann.com 301 North Lake Avenue, 7th Floor Pasadena, CA 91101 Telephone 626/440-5200 Facsimile 626/796-0107 26 Counsel for Plaintiffs 18 19 20 21 22 23 24 27 28 - 49 - Exhibit B Page 104

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